Date: 20020513
Docket: A-142-02
Neutral citation: 2002 FCA 191
Present: The Honourable Mr. Justice Isaac
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
SOCIETY PROMOTING ENVIRONMENTAL CONSERVATION
on its own behalf and on behalf of its members
Respondent
Heard at Vancouver, British Columbia, on April 22, 2002
Order delivered at Saskatoon, Saskatchewan, on May 13, 2002
REASONS FOR ORDER BY: ISAAC J.A.
Date: 20020513
Docket: A-142-02
Neutral citation: 2002 FCA 191
Present: The Honourable Mr. Justice Isaac
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
SOCIETY PROMOTING ENVIRONMENTAL CONSERVATION
on its own behalf and on behalf of its members
Respondent
REASONS FOR ORDER
[1] The appellant, the Attorney General of Canada, moves this Court for a stay of the operation of an order made by Campbell J. of the Trial Division on 5 March, 2002, pending the hearing and disposition in this Court, of an appeal of that order. In it he quashed, for want of jurisdiction, the confirmation by the Minister of Public Works and Government Services of a Notice of Intention to Expropriate made under section 11(1)(a)(ii) of the Expropriation Act, R.S.C. 1985, c. E-21.
[2] The facts are not in dispute and for the purposes of these reasons I have relied on the facts stated by the Motions Judge in his reasons and from paragraphs 4 - 24 of the memorandum of fact and law of the appellant.
[3] It should be noticed that the Province of British Columbia, the owner of the property in dispute, has not appeared or taken any position in this motion.
[4] Paragraph 9 of the reasons of the Motions Judge reads:
[9] Although the Province of British Columbia, through the Department of Intergovernmental Relations, made considerable effort to encourage public objection and involvement in the Hearings conducted, it is not a party to the present application. However, the Province of British Columbia has launched a constitutional challenge to the Expropriation in the Supreme Court of British Columbia; and , in addition, the Human Rights Institute of Canada, in conjunction with other individuals and organizations, has brought parallel Federal Court actions challenging the validity of the Expropriation.
[5] In view of the volume of litigation which has arisen since the Government of Canada gave notice of intention to expropriate, it seems to me that the appellant is prudent to seek the remedy of a stay. The issue is whether the appellant is entitled to the remedy he seeks.
[6] Counsel for the parties are agreed that this issue is governed by the judgment of the Supreme Court of Canada in RJR -- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, where Sopinka J., for the Court, considered and applied the tripartite test laid down by that Court in its earlier judgment in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.
[7] In RJR -- MacDonald, supra, the appellant described the tripartite test as follows: In order to succeed they must show that:
(i) there is a serious issue to be tried;
(ii) they will suffer irreparable harm if their stay is not granted; and
(iii) the balance of convenience, taking into account the public interest favours, retaining the status quo until the Court had disposed of the legal issues.
[8] I accept that the test in RJR -- MacDonald, supra, governs this case.
[9] In oral argument counsel for the respondent conceded that there were serious issues to be tried, thus obviating the need for me to say more about the first branch of the test.
[10] I therefore proceed to consider whether the appellant would, unless the stay is granted, suffer irreparable harm. In this respect I find the following passage of the reasons of Sopinka J. in RJR -- MacDonald, supra, at page 341 instructive:
At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the results of the interlocutory application.
[11] Commander Barry R. Sparkes, Commanding Officer of the Canadian Forces Maritime Experimental Test Ranges ("CFMETR") has deposed in his affidavit sworn on 11 March, 2002 and filed in support of this motion, as follows:
15. There would in my view be significant adverse consequences to the interests of the Canadian government and that of the Canadian public generally should Canada be unable to continue to use CFMETR.
16. Canada has scheduled torpedo training and testing at CFMETR this week and next, and on an ongoing basis. That training and testing is relevant and significant to ensuring the efficacy of torpedos Canada requires to maintain its maritime defensive readiness. Canada has no other instrumented facilities to test sonars and torpedos. Thus, in my view, even in the short-term, the loss of use of CFMETR could impair Canadian maritime defensive readiness in respect to anti-submarine warfare. The Canadian Navy and Air Force need to use some training and testing facility on an ongoing basis to ensure the accuracy of torpedos employed by them.
17. While torpedo testing and training could in theory be performed at other non-Canadian sites there would be costs to using such alternative sites, arising from, among other things, increased operating costs and fees for using such sites. Also, Canada would likely enjoy lower priority to the access to those sites. The Canadian maritime forces would likely have to use Unites States test facilities in Hawaii and other United States sites to conduct torpedo firings and other ship and aircraft trials; this would likely result in limited range access, increased costs and a lower priority for test results.
[12] There was no cross-examination on this affidavit and no contradiction in the affidavits of Mr. Ivan Bulic, sworn 8 April, 2002 or Dr. Michael Wallace, sworn 29 March, 2002, which the respondent filed. Consequently, in my view, the appellant has met this branch of the test.
[13] I turn now to the final branch of the tripartite test - balance of convenience, taking into account any alleged harm to the public interest. In this connection, the following passage of Mr. Justice Sopinka in RJR -- MacDonald, supra, at page 346 appears to me to be apt:
The test [of harm to the public interest] will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation ,regulation, or activity was undertaken pursuant to that responsibility. Once those minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.
[14] I am not unmindful of the fact that consideration of the public interest may also be influenced by other factors or that the respondents also represent a segment of the public interest. But I am also mindful of Lord Diplock's advice on American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396 at 408 that "it is a counsel of prudence to ... preserve the status quo".
[15] Despite Mr. Gage's eloquent plea that I should either dismiss the application or should grant it with the conditions mentioned in paragraphs 77 and 78 of his memorandum of fact and law, I nevertheless propose to follow Lord Diplock's dictum and grant the appellant's motion, thus maintaining the status quo ante, for the following reasons. First, the Minister of Public Works and Government Services in his Statement of Reasons at page 361 of the appellant's motion record, has stated that the expropriated land is required for essential security and defence considerations, which are a constitutional responsibility of the Parliament of Canada. Second, in the same document, he has either denied of has provided answers to some of the objections which the respondent has raised in the materials he filed in support of the position he has taken on the motion. The Minister's Statement of Reasons struck me as being both thoughtful and articulate. I see no reasons, therefore, why I should not, for the purposes of this motion, accept its contents at face value. For the same reasons, I accept the letter of Messrs. Eggleton and Anderson respecting this matter. [my emphasis]
[16] Finally, the affidavits of Commander Barry Sparkes and of Jean Riopel contain evidence which has persuaded me, on a balance of probabilities, that Canada needs the testing range for reasons of national security and to meet its international obligations.
CONCLUSION
[17] I would grant the motion with costs.
[18] There is one further matter that I would like to deal with before leaving this file. During argument, I discussed with both counsel the possibility of an early hearing of the outstanding appeal, but I was unsuccessful. Counsel for the respondent wished that the appeal be heard in Vancouver, but this could not be accommodated in this term.
[19] In order to keep the file moving, I will make an order expediting the hearing of the appeal.
"Julius A. Isaac"
J.A.
Saskatoon, Saskatchewan
May 13, 2002
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-142-02
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
Appellant
and
SOCIETY PROMOTING ENVIRONMENTAL CONSERVATION on its own behalf and on behalf of its members
Respondent
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: MONDAY, APRIL 22, 2002
REASONS FOR ORDER : ISAAC J.A.
DATED: MONDAY, MAY 13, 2002
APPEARANCES: Mr. Michael Stephens
Mr. John Hunter, Q.C.
FOR THE APPELLANT
Mr. Andrew Gage
Mr. David Wright
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Davis & Company
Barristers & Solicitors
2800 Park Place
666 Burrard Street
Vancouver, BC
V6C 2Z7
FOR THE APPELLANT
West Coast Environmental Law Association
1001 - 207 West Hastings Street,
Vancouver, BC
V6B 1H7
FOR THE RESPONDENT